Germany: No GDPR damages after data breach
Seen at DLA Piper:
One of the many open questions of data protection law in Europe is how compensation for “non-material damage” will be calculated. In contrast to personal injury claims where lawyers have (hundreds of) years of case law to call upon to help calculate compensation, there is comparatively little case law considering how compensation will be calculated for distress when personal data are processed in breach of GDPR. The German courts have been helping to fill this legal void with a number of recent decisions which will be welcomed by controllers and processors. Although there are some more data subject friendly court decisions in Germany these are increasingly seen as outliers; the developing trend of decisions in Germany is that a mere loss of control of personal data and a subjective feeling of distress on the part of the affected data subject is insufficient to prove non-material damage. There must be some objective harm. It is still early days in the evolution of case law regarding non-material losses so it is possible that the case law of the German courts will evolve along a more data subject friendly subjective approach, but this recent case and the majority of decisions to date favor a narrower objective test to prove non-material damage which will come as a relief to data controllers and processors alike.
In a civil action following a personal data breach affecting a credit card bonus programme, the Regional Court (Landgericht) Frankfurt am Main rejected claims by a data subject who was affected by the breach for a cease-and-desist injunction and for compensation for non-material damage under Article 82(1) GDPR. The decision is in line with the majority of similar restrictive interpretations of Article 82(1) GDPR by other German courts, requiring evidence of objective harm. Nevertheless, there are also a few more “generous” court decisions favoring a subjective test for proof of non-material damage.
Read more about the facts of the case and the opinion on DLA Piper. I am always grateful to those firms who write up non-English language cases so that we can become more aware of important opinions and privacy developments.